Jackson ex dem. Hogeboom v. Stiles — 1 Cai. 501

Majority

p. 630

Jackson, ex dem. Hogeboom, against Stiles, Griffin, tenant in possession.

Headnote

In ejectment, on a motion to set aside the rule to appear and enter, &6., if the application be founded on irregularities to be supported by inspection of the declaration, &c., on file, and the plaintiff produce affidavit of due service, &c., it will be presumed that all was regular, the tenants not producing the declarations and notices served, especially if¡ by granting the motion, the statute of limitations would attach.

In this and several other actions, under demises from the same lessor, the tenants moved to set aside the rules which had been entered to appear and enter into consent rules, or that judgment go against the casual ejector.

The notice of motion stated that the applications would be grounded on an inspection of the declarations, notices, and affidavits on file, by which it would appear that three of the notices were directed in blank, and one to James Perkins, instead of the tenant, James Kerman.

Harrison.

In ejectment the declaration is analogous to process, and ought, therefore, to be governed by [*502] the same *rules. If a sheriff were to serve one man with a writ directed to another, it certainly would not be a legal service, and, in ejectment, a notice to A. is not a notice to B. Kerman can never be Perkins. The court will not permit the possession of one man to be changed by proceedings against another. Ex parte Reynolds, this term. (Ante, 500.)

Woodworth

(Attorney-General) read an affidavit, stating that James Kerman was personally served, and that the declaration, with notices annexed, were served on the tenants. He also referred the court to Jaclcson v. Stiles, ante. 249, for the same facts, on a former application in this very cause. The effect of the present motion, if "allowed, would be, he said, to try and decide the cause against the

p. 631

lessor of the plaintiff, as the limitation of the statute will then apply. See Jackson v. Horton, 3 Caines’ Rep. 197 , and the note there.

Harrison, in reply.

The effect of the statute cannot be taken into consideration. Suppose trespass for carrying away goods brought, instead of assumpsit, and the six years passed, would the court interfere to prevent the operation of the statute ? This case deserves no indulgence; twelve months elapsed before the application to amend in August last was made.

The application in these suits is founded on a reference to the proceedings on file, by which, it is said, it will appear that one of the notices was misdirected, and the others in blank. In the affidavit on behalf of the plaintiff, it is sworn, that the direction of the one served on James Kerman, was to him- in his name, and that the tenants were duly served: if the facts were otherwise, it would have been very easy to evince them, by producing the several notices, ¿ce. actually served, without referring to those on file. It is, therefore, to be presumed that the services have been regular. The court will, in the present case, support this presumption, as otherwise, by the intervention of the limitation of the statute, the plaintiff would be barred. The case of Eeynolds is very different from this; there no proceedings had been served on him; a different tract of land was. claimed ; the first intimation he had was by an execution which turned him out, and that very execution against *the possession of [*503] a different man. We there protected the right of the party, and we do so here. The tenants can take m thing by their motion.

Motion denied.